grossman

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK GROSSMAN ENTERPRISES LLC, Plaintiff, -against- CONDÉ NAST, a division of ADVANCE MAGAZINE PUBLISHERS INC., CONDÉ NAST ENTERTAINMENT LLC, DISCOVERY COMMUNICATIONS, LLC, and TRUE ENTERTAINMENT LLC, Defendants.

ECF CASE No. __-CV-____ COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff Grossman Enterprises LLC (“Grossman” or “Plaintiff”), by its attorneys, Cahill

Partners LLP, as and for its complaint against defendants Condé Nast, a division of Advance

Magazine Publishers Inc. (“Advance”), and Condé Nast Entertainment LLC (“Condé Nast

Entertainment”) (together, “Condé Nast”); Discovery Communications, LLC (“Discovery”) and

True Entertainment LLC ( “True Entertainment”) (Condé Nast, Discovery and True

Entertainment are collectively referred to as “Defendants”), alleges:

SUMMARY OF THE ACTION

1. This lawsuit concerns Defendants’ willful and repeated infringement of

Grossman’s copyrighted photographs during a cable broadcast that aired on Investigation

Discovery Channel.

2. Grossman is a limited liability company with its principal place of business in this

judicial District.

3. Grossman was organized in order to preserve and protect the extensive and

valuable photographic archive of Henry Grossman (“Henry” or the “Photographer”).

Case 1:15-cv-04785-JMF Document 1 Filed 06/19/15 of 23

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4. Grossman seeks damages for willful copyright infringement by the Defendants,

arising from Defendants’ unauthorized use in violation of the United States Copyright Act, 17

U.S.C. § 101 et seq. (the “Copyright Act”) of three original photographs taken by Henry.

5. Defendants, without any authorization whatsoever from Plaintiff, prepared,

reproduced, publically displayed, and publically performed (via a cable broadcast) a commercial

audiovisual work (the “Episode”) which incorporated exact copies of Grossman’s copyrighted

photographs (the “Registered Works”).

6. The Registered Works are all registered in the U.S. Copyright Office as

registration numbers VAu 1-198-319 and VAu 1-198-322.

7. Plaintiff is the owner of all copyrights in all of the Grossman photographs

incorporated into the Episode.

8. Plaintiff seeks legal and equitable relief to remedy Defendants’ willful

infringement of Plaintiff’s copyrights. Plaintiff requests an order which: (1) declares that

Defendants’ unauthorized preparation, duplication, public performance, and public display of the

Episode willfully infringes Plaintiff’s copyrights in violation of the Copyright Act; (2) prohibits

Defendants from further infringement of Plaintiff’s copyrights, specifically including but not

limited to, any such use in the upcoming revised version of the Episode, set to air on Sunday

March 22, 2015; (3) requires the impoundment and destruction of all copies of the Episode (and

any revisions) in Defendants’ custody or control; and (4) awards actual damages and profits, as

well as statutory damages and costs, to the extent permitted under the Copyright Act.


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PARTIES, JURISDICTION AND VENUE

9. Plaintiff Grossman is a limited liability company whose principal place of

business is located at 604 Riverside Drive #4E, New York, New York 10031.

10. Upon information and belief, Defendant Advance Magazine Publishers Inc. is a

corporation organized under the laws of New York whose principal place of business is located

at 950 Fingerboard Road, Staten Island, New York 10305.

11. Upon information and belief, Defendant Condé Nast Entertainment LLC is a

limited liability company organized under the laws of the state of Delaware whose principal

place of business is located at 1 World Trade Center, New York, New York 10007.

12. Upon information and belief, Defendant Discovery Communications, LLC is a

limited liability company organized under the laws of the state of Delaware whose principal

place of business is located at One Discovery Place, Silver Spring, Maryland 20910.

13. Upon information and belief, Defendant True Entertainment LLC is a limited

liability company organized under the laws of Delaware whose principal place of business is

located at 601 West 26th Street, Suite 1336, New York, New York 10001.

14. This Court has subject matter jurisdiction over this action under the copyright

laws of the United States, 17 U.S.C. § 101 et seq. and 28 U.S.C. §§ 1331 and 1338.

15. Upon information and belief, this Court has personal jurisdiction over the

Defendants under CPLR §§ 301-302 because they all do business in this state and this

jurisdiction.

16. Venue is appropriate in this district pursuant to 28 U.S.C. §§ 1391(a) and 1391(b)

and 1391 and 28 U.S.C. § 1400(a).

FACTS


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The Registered Works

Registered Work 1: Robert Durst with Susan Berman

17. Henry Grossman made a number of photographs of Robert Durst, his (presumed

deceased) first wife Kathie Durst, and Robert Durst’s longtime friend (also deceased) Susan

Berman in at a party in 1981.

18. A photograph of Susan Berman hugging Robert Durst at the 1981 party is

registered under U.S. Copyright VAu 1-198-322 (“Registered Work 1).

19. Registered Work 1 is an original work of authorship.

20. Registered Work 1 has been fixed in a tangible medium of expression.

21. Registered Work 1 contains substantial amounts of material created by Henry

Grossman’s own artistic judgment and creativity.

22. Registered Work 1 is copyrightable subject matter under the laws of the United

States.

23. Upon information and belief, Registered Work 1 has never been published

without the consent of Henry or Grossman Enterprises.

24. The effective date of registration for Registered Work 1 is January 9, 2015.


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Registered Work 2: Photograph of Susan Berman with Unidentified Party Guest

25. Henry Grossman photographed Susan Berman with an unidentified party guest in

1981 (“Registered Work 2”).

26. Registered Work 2 is registered under U.S. Copyright VAu 1-198-319.




Grossman’s own creative artistic judgment and creativity.


States.




Registered Work 3: Photograph of Robert and Kathie Durst

33. Henry Grossman photographed Robert and Kathie Durst with Susan Berman in

1981 (“Registered Work 3”).

34. Registered Work 3 is registered under U.S. Copyright VAu 1-198-322.




Grossman’s own creative artistic judgment and creativity.


States.


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Defendants’ Infringement

41. Upon information and belief, Defendants had a reasonable opportunity to view the

Registered Works prior to the making of the Episode.

42. Upon information and belief, Defendant Condé Nast had access to the Registered

Works because it had previously been granted a one-time, non-exclusive, print-only license to

reproduce the Registered Works in a 2002 article published in Talk Magazine.

43. Talk Magazine was a close affiliate of Vanity Fair magazine; both Talk Magazine

and Vanity Fair were and are owned by Defendant Condé Nast.

44. The Talk magazine article –“What Made Bobby Run”– is attached hereto and

incorporated by reference herein as Exhibit A.

45. A true and correct copy of the signed license agreement between Henry Grossman

and Vanity Fair is attached hereto and incorporated by reference herein as Exhibit B.

46. Plaintiff caused Registered Works 1, 2 and 3 to be registered effective as of

January 9, 2015.

47. Upon information and belief, on or about January 23, 2015, Defendants aired the

Episode, which was developed from the 2002 magazine article.

48. The Episode aired as part of the television series Vanity Fair Confidential.

49. The Episode reproduced and publically displayed the Registered Works.


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50. Promptly after becoming aware of Defendants’ unauthorized use of the Registered

Works in the Episode, counsel for Grossman contacted Defendants and advised them that any

use of Grossman’s photographs in the Episode was unauthorized.

51. Plaintiff has suffered, and continues to suffer, from the infringing activities of the

Defendants, including without limitation from Defendants’ failure to pay a license fee

commensurate with the value of their commercial use of the Registered Works (including in

promotions and advertising for the Episode and series) and from Defendants’ usurping of

Plaintiff’s right to control the publication and commercial use of the Registered Works.

Defendant Condé Nast’s Infringing Activities

52. In its capacity as the publisher and owner of Talk Magazine, Condé Nast was in

control of the, creation, publication, and distribution of the 2002 article “What Made Bobby

Run.”

53. Condé Nast owns, operates or controls Condé Nast Entertainment, which was in

control of the development, creation, and production of the Vanity Fair Confidential series, as

well as the Episode.

54. Accordingly, upon information and belief, Condé Nast at all relevant times, had

actual or constructive knowledge of the infringing actions complained of herein.

55. Upon information and belief, Condé Nast at all relevant times supervised and

participated materially in the infringing activities complained of herein.

56. Upon information and belief, Condé Nast at all relevant times contributed

material support to entities and/or individuals who engaged in the infringing activities

complained of herein.


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57. Upon information and belief, Condé Nast at all relevant times had the right to

control the infringing activities complained of herein.

58. Upon information and belief, Condé Nast at all relevant times had the ability to


59. Upon information and belief, Condé Nast realized or stood to realize a direct

financial benefit from the infringing activities complained of herein.

60. Accordingly, Condé Nast is a contributory and/or vicarious infringer of Plaintiff’s

copyrights in the Registered Works and is jointly and severally liable for any damages that may

be awarded in this action.

Defendant Discovery’s Infringing Activities

61. Upon information and belief, Discovery owns and operates Investigation

Discovery Channel.

62. As the owner of Investigation Discovery Channel, Discovery was in control of the

development, creation, and production of the Vanity Fair Confidential series, as well as the

Episode.1

63. As the owner of Investigation Discovery Channel, Discovery broadcast the

Episode.

64. The Episode provides on-screen credit to various executives of Investigation

Discovery Channel, including Senior Executive Producer, Senior Vice President of Production,

and others.

1 “ID Investigation Discovery” and “Investigation Discovery” are registered trademarks of Defendant Discovery Communications, LLC.


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65. Accordingly, upon information and belief, Discovery at all relevant times, had

actual or constructive knowledge of the infringing actions complained of herein.

66. Upon information and belief, Discovery at all relevant times supervised and

participated materially in the infringing activities complained of herein.

67. Upon information and belief, Discovery at all relevant times contributed material

support to entities and/or individuals who engaged in the infringing activities complained of

herein.

68. Upon information and belief, Discovery at all relevant times had the right to


69. Upon information and belief, Discovery at all relevant times had the ability to


70. Upon information and belief, Discovery realized or stood to realize a direct

financial benefit from the infringing activities complained of herein.

71. Accordingly, Discovery is a direct and/or contributory and/or vicarious infringer

of Plaintiff’s copyrights in the Registered Works and is jointly and severally liable for any

damages that may be awarded in this action.

Defendant True Entertainment LLC’s Infringing Activities

72. True Entertainment LLC was in control of the development, creation, and

production of the Vanity Fair Confidential series, as well as the Episode.

73. Accordingly, upon information and belief, True Entertainment at all relevant

times, took the actions and had actual or constructive knowledge of the infringing actions



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74. The Episode provides on-screen credit to various executives of True

Entertainment, including Executive in Charge of Production, Director of Production, Director of

Post-Production and Director of Technical Operations.

75. Upon information and belief, True Entertainment at all relevant times conducted,

supervised and participated materially in the infringing activities complained of herein.

76. Upon information and belief, True Entertainment at all relevant times contributed

material support to entities and/or individuals who engaged in the infringing activities


77. Upon information and belief, True Entertainment at all relevant times had the

right to control the infringing activities complained of herein.

78. Upon information and belief, True Entertainment at all relevant times had the

ability to control the infringing activities complained of herein.

79. Upon information and belief, True Entertainment realized or stood to realize a

direct financial benefit from the infringing activities complained of herein.

80. Accordingly, True Entertainment is a direct infringer and/or a contributory and/or

vicarious infringer of Plaintiff’s copyrights in the Registered Works and is jointly and severally

liable for any damages that may be awarded in this action.

FIRST CLAIM FOR RELIEF (Copyright Infringement)

81. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 80

of this Complaint as if fully set forth herein.

82. Plaintiff is the copyright owner of Plaintiff’s Registered Works.

83. Plaintiff’s Registered Works are original works of authorship.

84. Plaintiff’s Registered Works have been fixed in a tangible medium of expression.


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85. Plaintiff’s Registered Works contain substantial amounts of material created by

Plaintiff’s own artistic judgment and creativity.

86. Plaintiff’s Registered Works are copyrightable subject matter under the laws of

the United States.

87. Defendants’ unauthorized copying of Plaintiff’s Registered Works into the

Episode, and subsequent reproduction, public display, and public performance of the Episode,

are infringements of Plaintiff’s copyrights in the Registered Works in violation of the Copyright

Act, 17 U.S.C. § 106.

88. As a direct and proximate result of Defendants’ foregoing acts, the Plaintiff has

been damaged in an amount to be proved at trial.

WHEREFORE, Plaintiff demands judgment as follows:

A. Declaring, pursuant to 28 U.S.C. §§ 2201 and 2202, that Defendants’ conduct

constitutes direct, contributory and vicarious infringement of Plaintiff’s

copyrighted Registered Works in violation of the Copyright Act;

B. Awarding Plaintiff, at its election, either (i) the actual damages suffered Plaintiff

and the profits derived by Defendants as a result of their infringing activities

under the Copyright Act, 17 U.S.C. § 504(b), or (b) statutory damages in the

maximum amount of $150,000 for each infringement under 17 U.S.C. § 504(c);

C. Granting a permanent injunction requiring Defendants to cease and desist from

reproducing, distributing, performing, and displaying the Episode without

authorization from Plaintiff;

D. Ordering the impoundment and destruction of all copies of the Episode;


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E. Awarding Plaintiff prejudgment interest, the costs of this action, and its

reasonably incurred attorney’s fees; and

F. Awarding such other and further relief as this Court deems just and proper.

JURY TRIAL DEMANDED

Pursuant to Fed. R. Civ. P. 38(b), Grossman demands a trial by jury.

Dated: New York, New York 2015-June-19

CAHILL PARTNERS LLP s/_John R. Cahill________ John R. Cahill Amy J. Goldrich

Ronald W. Adelman 70 West 40th Street

New York, New York 10018 (212) 719-4400

Attorneys for Plaintiff


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